Ex-prosecutor gets 2-year suspension over 100s of calls and texts with judge in death-penalty case

Legal Ethics

Ex-prosecutor gets 2-year suspension over 100s of calls and texts with judge in death-penalty case

By Martha Neil

Jun 25, 2013, 01:00 pm CDT

A referee recommended that a former Florida assistant state attorney be suspended from practicing law for one year due to the more than 1,400 ex parte calls and text messages he admittedly exchanged with the judge presiding over a death-penalty case he was prosecuting and the Florida Bar agreed this was the appropriate penalty.

But when Howard Michael Scheinberg appealed, the state supreme court saw his situation a bit differently and imposed a two-year suspension, the Sun-Sentinel reports.

“It’s disappointing,” his lawyer in the Florida Bar disciplinary case, Kevin Tynan, told the newspaper. “We believe the punishment was too severe, and now it’s doubled.”

The court has not yet ruled on the ethics case pending against the former Broward circuit judge, Ana Gardiner. She was also recommended for a one-year suspension by a referee but then had the boom lowered by the Florida Bar, which is seeking disbarment. She was found after a hearing last year to have lied to the Judicial Qualifications Commission.

Meanwhile, as the supreme court notes, the Broward state attorney’s office agreed to retry the capital case against convicted defendant Omar Loureiro, due at least in large part to the ex parte communications.

“Scheinberg and Gardiner engaged in a substantial number of personal communications that were not disclosed to the opposing party and his attorney. Moreover, this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against the respondent and where the judge could, and did, impose the ultimate sentence of death,” the court said in its written opinion (PDF) last week.

“The communications between Scheinberg and former Judge Gardiner led to an investigation and, ultimately, caused the Loureiro case to be retried, a process which consumed court resources, as well as the resources of opposing counsel. Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case … we hold that a two-year suspension is the appropriate discipline.”